By Isaac Levey and Yasmine Taeb - 10/30/13 07:35 PM EDT
The bipartisan USA Freedom Act, introduced Tuesday by Sen. Patrick Leahy (D-Vt.) in the Senate and Rep. James Sensenbrenner Jr. (R-Wis.) in the House, contains vital reforms to our intelligence apparatus, while still retaining the basic framework set up by the Foreign Intelligence Surveillance Act of 1978 (FISA).
The bill respects the constitutional rights of Americans, infuses the intelligence-gathering process with much-needed transparency and still allows the intelligence community more than enough tools to protect our nation.
As leading legal experts have said time and again, the bulk collection of Americans’ phone records is contrary to the entire premise of the FISA system. That system was adopted in response to the overreaching surveillance tactics the government used in the 1960s and 1970s, and was specifically intended to limit this kind of intelligence gathering to cases of individualized suspicion.
FISA has never before been understood, and was not intended, to permit the disclosure of a whole pool of private records just to look for patterns, and the USA Freedom Act simply restores that original understanding. It authorizes the collection of phone records and other “tangible things” only when, as is necessary for electronic surveillance under FISA, the records pertain to an agent of a foreign power, or that agent’s activities or contacts.
It would bring bulk collection back within the framework in which FISA has always operated: Surveillance is only permitted when targeting a specific individual in the course of an investigation, and only to the extent the information is relevant to that investigation.
But don’t take our word that bulk data collection wasn’t intended to be authorized under FISA. Ask Sensenbrenner, the man who helped write the very provision of law — Section 215 of the Patriot Act of 2001 — that has been used to justify that collection. He thinks the NSA has misread the statute he drafted, and he’s written the USA Freedom Act to restore the Patriot Act’s original understanding.
Just as important as the substantive question of what can actually be collected is the procedure by which collection is approved, and the secret nature of the proceedings. The bill creates a special advocate who will argue in favor of privacy interests before the Foreign Intelligence Surveillance Court, a proposal that has been endorsed by the Obama administration.
Privacy issues are often neglected in these proceedings, and the FISA court makes extremely consequential decisions about Americans’ constitutional rights without hearing opposing arguments. An officer whose duty it is to defend constitutional rights but who can also be trusted not to divulge properly classified information will help solve this problem. The advocate will not only participate in proceedings before the FISA court but will have authority to appeal its decisions to the Foreign Intelligence Surveillance Court of Review and the U.S. Supreme Court.
We also applaud the proposal to end secret law by requiring the FISA court’s important decisions and legal conclusions to be disclosed. The American people are mature enough to discuss these crucial issues out in the open, and if civil liberties are to be curtailed in the name of security, we should at least have the courage to make those decisions in public. That can’t happen if our rights are silently eliminated by a secret court whose decisions we never see.
For similar reasons, we also support the proposal to grant full investigative authority to the Privacy and Civil Liberties Oversight Board. Only by a full discussion, and a real awareness of what is actually going on, can we confront the questions of privacy, security and liberty the 21st century poses, and reconcile them in a manner worthy of enlightened society and constitutional democracy.
The Arab-American community understands better than most the dangers of excessive government surveillance and what happens when everyone is considered guilty until proven innocent. The USA Freedom Act — a rare bill that actually does what its catchy acronym suggests it will do — will go a long way to restoring the balance an advanced society demands between liberty and safety.
Taeb is government relations manager and Levey a legal fellow at the Arab American Institute.